Leasehold Estates (Tenancies)

Question 1

What is the general rule regarding the right to exclude a tenant?

Answer 1

You do not have to accept any person as a tenant, as established in Jacque v. Shack.

This means that landlords have a strong right to exclude tenants based on good faith, no reason, or even frivolous reasons.

Question 2

What is de jure segregation?

Answer 2

Segregation mandated by law and enforced by government.

De jure segregation has been outlawed.

Question 3

What is de facto segregation?

Answer 3

Segregation that exists even though laws do not require it.

It refers to the existing law that allows segregation without legal mandate.

Question 4

What does the Federal Fair Housing Act of 1968 (FHA) prohibit?

Answer 4

Discrimination based on:
* Race
* Color
* Religion
* Sex
* Familial status
* National origin

States may provide further protections beyond the FHA.

Question 5

What are the exemptions from the FHA?

Answer 5

The FHA does not apply to:
1) Rooms or units in dwellings containing living quarters occupied by no more than 4 families, if the owner occupies one as residence.
2) Any single family house sold or rented by an owner who owns less than 3 houses and does not use a broker.

These exemptions limit the scope of the FHA.

Question 6

What is required to prove discrimination under the FHA?

Answer 6

To overcome summary judgment, the plaintiff must show:
1) Direct evidence of discrimination or
2) Prima facie case of discrimination, including:
* Member of a protected class
* Application for rental
* Qualification for rental
* Application rejection
* Property remaining available.

If the defendant provides a legitimate reason for rejection, the burden shifts back to the plaintiff.

Question 7

What is the key ruling in Fair Housing Council of San Fernando Valley v. Roomate.com LLC?

Answer 7

The antidiscrimination provisions of the FHA do not apply to the selection of roommates.

The FHA’s definition of ‘dwelling’ excludes shared living units.

Question 8

What is a leasehold?

Answer 8

An estate in land that grants the tenant a present possessory interest in the land.

It distinguishes a tenant’s interest from a license, easement, or profit.

Question 9

What are the characteristics of a Terms of Years Tenancy?

Answer 9

Features include:
* Fixed period of time
* Created by written leases
* Must be in writing if over one year (Statute of Frauds)
* Transferable and inheritable
* Ends automatically at the specified date.

Common law placed no limitation on duration, but modern approaches typically do.

Question 10

What is required for termination of a Terms of Years Tenancy?

Answer 10

Notice of termination is not required; it expires automatically on the date specified.

Tenancy ends when the tenant surrenders the property or breaches a covenant.

Question 11

What defines a Periodic Tenancy?

Answer 11

Continues from year to year or for a fractional period until terminated by proper notice.

Proper notice varies based on the period of tenancy.

Question 12

What is a Tenancy at Will?

Answer 12

Has no fixed period and can be terminated at will by either party.

Requires both landlord and tenant to have the right to terminate at will.

Question 13

What is a Tenancy at Sufferance?

Answer 13

Arises when a tenant wrongfully remains in possession after lease termination.

The former tenant is liable for rent during the holdover period.

Question 14

What does the Statute of Frauds require for leases?

Answer 14

A lease for more than one year must be in writing and identify:
* Parties
* Property
* Duration
* Rent

Must be signed by the party against whom enforcement is sought.

Question 15

What is the difference between the American and English rules regarding delivery of possession?

Answer 15

The English rule implies a covenant requiring the landlord to deliver legal and actual possession, while the American rule only requires putting the tenant in possession.

Remedies vary based on which rule applies.

Question 16

What is the Minority Approach (American rule) regarding landlord obligations?

Answer 16

Landlord is obligated only to put the tenant in possession, not actual possession

This approach implies that the tenant’s remedies are against the person wrongfully in possession.

Question 17

What can tenants do if they face egregious living conditions?

Answer 17

Tenants can sue and receive damages from landlords

Landlords have an obligation to maintain the premises in a livable condition according to legal standards.

Question 18

What is Constructive Eviction?

Answer 18

A defense against a landlord’s claim of unpaid rent when the landlord has evicted the tenant

It requires showing wrongful conduct by the landlord that substantially interferes with the tenant’s use and enjoyment of the premises.

Question 19

What must a tenant show to prove Constructive Eviction?

Answer 19

1. Wrongful conduct by the landlord
2. Actions that substantially interfere with the tenant’s use and enjoyment

This includes failures to maintain common areas and perform promised repairs.

Question 20

What happens if a tenant does not vacate after a constructive eviction?

Answer 20

The tenant waives his claim to constructive eviction

The tenant must vacate within a reasonable time to preserve the claim.

Question 21

Define Implied Warranty of Habitability (IWH).

Answer 21

Requires a landlord to maintain the premises in habitable conditions

Any problem threatening health or safety may justify a breach of IWH.

Question 22

What are the tenant’s options when facing a breach of IWH?

Answer 22

1. Withhold rent
2. Make repairs and deduct costs
3. Sue for damages
4. Terminate the lease

Tenants can remain in possession and withhold rent until the landlord remedies the problem.

Question 23

What is a tenant’s duty regarding waste?

Answer 23

Not to commit waste by making changes that affect the character or purpose of the premises

Factors include the degree of effect on use and value, and permanence of the change.

Question 24

What is the general rule for transferring a tenant’s interest?

Answer 24

Both tenant and landlord can transfer their interests to third parties

This is based on the principle of freedom of alienation.

Question 25

What distinguishes an assignment from a sublease?

Answer 25

An assignment transfers the entire interest for the remaining lease term; a sublease transfers anything less ## Footnote The choice affects the rights and duties of the landlord, tenant, and transferee.

Question 26

What is privity of estate?

Answer 26

The relationship between the landlord and tenant regarding the use and occupancy of the premises ## Footnote Obligations under privity of estate run with the land.

Question 27

What is a sole discretion clause in a lease?

Answer 27

A clause allowing the landlord to refuse consent for any reason ## Footnote This can lead to arbitrary refusals and potential discrimination.

Question 28

What must a tenant do to utilize the Implied Warranty of Habitability?

Answer 28

Notify the landlord about the defect and allow a reasonable time for repairs ## Footnote The tenant is not required to vacate the premises during this process.

Question 29

What are the remedies for breach of IWH?

Answer 29

1. Withhold rent 2. Repair and deduct 3. Sue for damages 4. Terminate the lease ## Footnote Courts differ on the appropriate measure of damages.

Question 30

What happens if a tenant makes a change affecting a vital portion of the premises?

Answer 30

It may constitute waste ## Footnote The change must affect the appearance, purpose, or nature of the property.

Question 31

What is the consequence of a landlord failing to provide basic utilities?

Answer 31

It may breach the implied warranty of habitability ## Footnote This includes failure to supply heat or hot water.

Question 32

What is the majority test for determining assignment or sublease?

Answer 32

Did the tenant transfer the right of possession for all of the remaining lease term? ## Footnote If yes, it's an assignment; if no, it's a sublease.

Question 33

What is the effect of an assignment on privity of contract?

Answer 33

Privity of contract continues between lessor and assignor, and arises between lessee/assignor and assignee ## Footnote The assignor loses property rights in the leased premises.

Question 34

What is a silent consent clause?

Answer 34

A provision that contains no standard to guide L’s decision.

Question 35

What is the Majority Approach regarding landlord consent for assignment?

Answer 35

The lessor may arbitrarily refuse to approve a proposed assignee but can find waiver or estoppel in many instances.

Question 36

What are the harsh consequences of the Majority Approach?

Answer 36

It produces harsh consequences to lessees and would-be assignees.

Question 37

What is the Minority Approach in modern leasing?

Answer 37

A lessor may withhold consent to an assignment or sublease only if there is a commercially reasonable objection.

Question 38

What must a lessor do when exercising discretionary power to approve or disapprove an assignee?

Answer 38

Exercise that right according to commercially reasonable standards.

Question 39

List the factors to determine the reasonableness of a lessor's objection.

Answer 39

* Financial stability of the proposed assignee * Suitability of the proposed use of the property * Requirement for alterations to the property * Legality of the proposed use * Need for alteration of the premises * Nature of the occupancy (office, factory, clinic, etc.)

Question 40

Is denying consent based on personal taste commercially reasonable?

Answer 40

No, it is not commercially reasonable.

Question 41

What constitutes abandonment in a lease context?

Answer 41

When a tenant vacates the leased property without justification and without intention of returning.

Question 42

What happens if a tenant vacates the premises with justification?

Answer 42

No abandonment occurs.

Question 43

What are the three options a landlord has when abandonment occurs?

Answer 43

* Sue for all rent * Terminate the lease * Mitigate damages and then sue for rent

Question 44

What is the landlord's duty when seeking to recover rent from a defaulting tenant?

Answer 44

Mitigate damages by making a reasonable effort to re-let the premises.

Question 45

What is the trend regarding the treatment of leases?

Answer 45

Leases are increasingly treated as contracts rather than conveyances of land.

Question 46

What happens if a landlord fails to mitigate damages?

Answer 46

The defaulting tenant may be relieved of the duty to pay rent.

Question 47

What is the majority approach after abandonment?

Answer 47

The landlord must either terminate the lease or mitigate damages.

Question 48

Under common law, what rights did landlords have regarding eviction?

Answer 48

Landlords had the right to evict a tenant for any reason or for no reason.

Question 49

How is the landlord's right to evict restricted today?

Answer 49

Landlords may not evict for discriminatory reasons or in retaliation for certain tenant conduct.

Question 50

What is required for an eviction process today?

Answer 50

The landlord must go to court; self-help eviction is not permitted.

Question 51

Can a tenant with a term of years tenancy be evicted during the lease term?

Answer 51

Generally, no, unless there is a material breach of the lease.

Question 52

What is the common law regarding retaliatory eviction?

Answer 52

Landlords had almost unlimited discretion to terminate tenancies upon proper notice.

Question 53

What protections do most states provide against retaliatory eviction?

Answer 53

Protection from eviction if a tenant made a good faith complaint regarding the condition of the premises.

Question 54

What creates a rebuttable presumption of retaliatory purpose?

Answer 54

If the landlord seeks to terminate tenancy, increase rent, or decrease services shortly after a tenant's complaint.

Question 55

What is the scope of the retaliatory eviction doctrine?

Answer 55

* Protects tenant's efforts to remedy poor housing conditions * Varies by jurisdiction on application to refusal to renew tenancy * Generally does not apply to commercial tenancies

Question 56

What does 'retaliatory' mean in the context of eviction?

Answer 56

The eviction decision is made because of the tenant's protected activity.

Question 57

What must a tenant prove under the retaliatory eviction statute?

Answer 57

That, 'but for' the tenant’s protected activity, the landlord would not have made the eviction decision.

Question 58

What are common law remedies when a tenant breaches a covenant?

Answer 58

* Self-help: L could retake possession peacefully * Sue the tenant: L could secure a judgment for eviction

Question 59

What is the modern rule regarding self-help for eviction?

Answer 59

Self-help is never appropriate; judicial means must always be used.